City of San Antonio v. Hoefling , 90 Tex. 511 ( 1897 )

GAINES, Associate Justice.

This suit was brought by the city of San Antonio to recover of William Hoefling certain taxes assessed against him for the fiscal year ending February 28,1891. He did not render his property for taxation for that year; but it was listed in his name as the owner by the city tax assessor and was valued by that officer. The “board of appeal and revision,” without giving him notice, increased the valuation of certain parcels of his real estate, but left that placed by the assessor upon other parcels, as well as that put upon his personal property, untouched. The city recovered a judgment in the trial court for • all the taxes claimed by it—that is to say, it recovered upon the basis of the increased valuation made by “the board of appeal and revision.” Upon appeal to the Court of Civil Appeals, that judgment was reformed and a judgment was given for the city for the taxes upon the property only which had been valued by the assessor and upon which the valuation had not been increased by the board. On appeal to the Court of Civil Appeals, the contention of the city was, that under the charter of the city when property was unrendered, whether the owner was known or not known, it was the duty of the assessor- to list it melely and not to value it, and that the valuation in the first instance was to be fixed" by “the board of appeal and revision,” and that therefore the valuation of the assessor was without effect and the board had the power to value the property without notice to the owner. The Court of Civil Appeals, however, held, that where property in the city was not rendered and the owner was known, it was the duty of the assessor not only to list it in the name of the owner, but also to value it for taxation, and that the board had no power to increase that value without giving notice to the owner. We concur in that opinion. But we are also inclined to think, that in reforming the judgment the court should have allowed the city a recovery not only for the taxes upon the property, the valuation of which had not been increased by the board; but also for the taxes upon the other property, upon the basis of the assessor’s valuation—disregarding the attempted increase. It would seem that if the attempt of the board to raise the value of certain parcels of the real estate was void because they failed to give proper notice to the owner, the assessment made by the assessor would remain unaffected. But the failure of the Court of Civil Appeals to give a judgment for such additional amount was not made a ground of the motion for a rehearing in that and has not been formally assigned as a ground of error in this court. There is, however, a proposition under the last assignment of "error presented in the application which raises the question. We would be disposed to disregard the form and to treat the proposition as an assignment in itself; but since it was not made a ground of the motion for a rehearing—under our rules, it must be considered as waived. In the petition the city prays for all the taxes upon the basis of the increase made by the board and does not pray in the alternative for what may be due it upon the basis of the assessor’s valuation. In its brief in the Court of Civil Appeals, it is nowhere suggested that it was entitled to so much if not to all it claimed. In its motion for a rehearing, the ground is not urged, that it was entitled at least to what was shown to be due according to the value placed upon the property by the assessor.

Bights not insisted upon by counsel may be inadvertently disregarded by courts; and the object of the rule which requires that the grounds upon which a writ of error is sought in this court shall first be presented to the Court of Civil Appeals in a motion for a rehearing, was to enable that court to correct any error into which it may have fallen by reason of not having had the matter called distinctly to its attention.

The point made by the proposition to which we have alluded is worthy of consideration and we would not be understood as determining it adversely to the applicant, but it is not so presented that we feel at liberty to decide it.

The application for the writ of error is refused.

Writ of error refused.